Thread by @mdbrauch

"Members of the [@CIJ_ICJ] have come to the decision, last month, that they will not normally accept to participate in international arbitration. In particular, they will not participate in investor-State arbitration" #ISDS

https://twitter.com/IISD_ELP/status/1331185926387748864

After this clear announcement by the President of the @CIJ_ICJ in 2018, odd to see members of the Court being again appointed as arbitrators in high-paying #ISDS cases. Not what one would normally expect of full-time elected judges of the principal judicial organ of the @UN.

As of January 2019, the annual salary of an elected member of the @CIJ_ICJ (base salary + post adjustment, excluding benefits) was US$239,135 = US$655.16 per day (A/74/354, p. 31) undocs.org/A/74/354

As of November 2020, the daily fee paid to an ICSID Convention arbitrator is US$3,000—more than 4 times the daily base salary (incl. post adjustment) of an elected member of the @CIJ_ICJ. (Both are exempt from taxation.) icsid.worldbank.org/services/conte…

Note what @LawProfPuig wrote back in 2014 (academic.oup.com/ejil/article/2…): "Privately, some arbitrators complain about the low rates of pay of @icsid (US$375) as compared to other arbitration venues. For one, the LCIA set the hourly rate at US$700
(£450)."

Still from @LawProfPuig: "Also, other institutions calculate arbitrators’ fee as a proportion of the amount in dispute. For example, in the International Chamber of Commerce [ICC] for a US$100 million dispute, arbitrators could earn on average up to US$350,000."

(Maybe less under the 2017 ICC Arbitration Rules adopted since Puig's article: iccwbo.org/dispute-resolu…)

Back to @LawProfPuig: "Another arbitrator acknowledged that some arbitrators, with a private law background, consider @icsid ‘pro bono’ and refuse to take many cases."

An @CIJ_ICJ judge earning US$655.16 per day would earn that in less than 2 hours (US$750) in a "pro bono" @icsid Convention case, and maybe even less under other arbitration rules or institutions allowing for more flexibility in the setting of fees for arbitrators.

Sorry if it sounds crass of me to point to salary/fee amounts, but in my view there is something evidently off with the incentive structure in international adjudication/arbitration.

The pay disparity between judges of permanent courts like the @CIJ_ICJ and #ISDS arbitrators, as well as among arbitrators, has troubling implications for the principle that the remuneration of adjudicators should be adequate, as well as for their independence and impartiality.

In fact, what does "adequate" remuneration even mean? What is insufficient? What is excessive? And aren't these all prestigious public international law adjudicators? What justifies the four-fold difference in their hourly remuneration?

Also, if we want to get *really* depressed, let's look at how the fees of an #ISDS arbitrator compare to the pitiful emoluments of the highly influential judges of the Inter-American Court on Human Rights @CorteIDH...

The IACtHR has budgetary authorization to pay a maximum of US$4,000 per month per judge in emoluments (what an @icsid Convention arbitrator earns in less than 1.5 days), plus honoraria of US$300 per day of session. (paras. 15, 17) oas.org/consejo/GENERA…

If an international human rights adjudicator earns less than an international investment law arbitrator, is it because we value human rights less than investment?

And even if we are to stay in the field of international economic law, how much does a @wto panel member earn? CHF 783 per day—again, roughly 1/4 of the daily fee of a "pro bono" @icsid arbitrator (paras. 4.2, 4.5) docs.wto.org/dol2fe/Pages/F…

Beyond considering concerns about the (perceived & actual) independence & impartiality of @CIJ_ICJ judges who take on #ISDS cases (even after expressly prohibited), it's also time to think whether the remuneration of part-time #ISDS arbitrators is set at reasonable levels.